Citation Nr: 21040989 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-04 417 DATE: July 7, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to June 27, 2017, and in excess of 50 percent on and after June 27, 2017, for service-connected right knee patellofemoral pain syndrome and patella chondromalacia (right knee disability) is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and a right knee disability, is remanded. FINDINGS OF FACT 1. Prior to June 27, 2017, the Veteran's right knee disability is manifested by painful motion. 2. On and after June 27, 2017, the Veteran's right knee disability is manifested by extension limited to 45 degrees. CONCLUSIONS OF LAW 1. Prior to June 27, 2017, the criteria for an initial rating in excess of 10 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. On and after June 27, 2017, the criteria for an initial rating in excess of 50 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to August 2005, with service in Iraq from January 2004 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2017 and October 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009) (noting that if the issue of TDIU is raised during the administrative appeal of a claim for an increased rating, it is part and parcel of that claim). In the Veteran's NOD regarding the issue of an increased evaluation for the right knee disability, the Veteran's attorney noted that they disagreed with the decision, based in part, on the issue of TDIU. See NOD (9/12/2017). However, as noted in an October 2018 Board decision addressing unrelated issues, the issue of entitlement to TDIU was expressly withdrawn in a February 2018 statement from the Veteran's attorney. The attorney noted that the Veteran was currently working and understood he was not entitled to TDIU at that time. See VA 21-4138 Statement in Support of Claim (2/13/2018). The issue was thus withdrawn as of that date. The Veteran and his representative were notified of this action in the October 2018 Board decision and in a response to a status request. See Status Letter (11/5/2019). After the withdrawal, and in multiple status requests, the Veteran's representative noted that the Board had issued a decision in January 2018 that had not yet been implemented regarding TDIU and several other issues. See Third Party Correspondence (6/24/2020), (3/26/2020), (12/19/2019), (9/19/2019), (6/21/2019), 3/27/2019), (1/3/2019), (10/8/2018), (4/11/2018). The Board does not consider these requests as raising the issue of TDIU anew. First, these status requests were made in response to a 2018 Board decision that remanded the issue of TDIU, prior to the Veteran's withdrawal of the issue. Second, none of these requests were in regard to the issues on appeal here. Finally, these requests did not contain any specific allegation of unemployability. Likewise, no medical records or lay statements raise the issue of unemployability after the withdrawal. Accordingly, the Board finds that the issue is not on appeal. Next, the Board finds that the issue on appeal is entitlement to an increased evaluation for the service-connected right knee disability. In the Veteran's NOD, he checked the box for appealing the effective date. However, in the argument portion of the NOD, the Veteran's attorney asserted that he was entitled to a compensable evaluation for the first time period of the staged ratings and intimated they were seeing an earlier effective date for the 50 percent evaluation assigned as a staged rating. See NOD (9/12/2017). The Board thus finds that the Veteran is asserting entitlement to a higher evaluation and not an earlier effective date for the grant of service connection. 1. Entitlement to an evaluation in excess of 10 percent prior to June 27, 2017, and in excess of 50 percent on and after June 27, 2017, for service-connected right knee disability is denied. The Veteran contends that he is entitled to a higher rating for his service-connected right knee disability. The Veteran asserts that he is entitled to separate evaluations for limitation of flexion and extension. See NOD (9/12/2017). The Board concludes that the preponderance of the evidence does not demonstrate an initial evaluation in excess of 10 percent prior to June 27, 2017, because the right knee disability showed only painful motion. On after June 27, 2017, an evaluation in excess of 50 percent the right knee disability was limited to 45 degrees of extension. The Board notes that the most recent VA examination in this appeal was in 2017, over 4 years prior. Although the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. 38 C.F.R. § 3.159; Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Here, there has been no assertion that the Veteran's right knee disability has worsened since the 2017 VA examination and the medical evidence does not indicate such a worsening. Remand for a more current examination is thus not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2020). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2020). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Here, the date of claim is March 18, 2010. In a July 2017 rating decision, the AOJ granted service connection for the right knee disability and assigned a zero percent rating, effective March 18, 2010 and a 50 percent rating, effective June 27, 2017. During the appeal period, in an October 2018 rating decision, the AOJ assigned a 10 percent evaluation for the initial time period and continued the 50 percent evaluation. The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right knee disability prior to June 27, 2017. VA treatment records for this time period do not contain any findings regarding the right knee. August 2010 and September 2015 VA examinations found extension to zero degrees. Considering the impact of functional loss, the examinations showed no objective pain noted on examination and no additional pain, limitation of function, or limitation of motion upon repetitive use testing. The Veteran did not report flare-ups at either examination, but reported pain especially with prolonged sitting, kneeling, walking, or running. He also reported clicking and weakness. In August 2010, there was a normal gait with no evidence of abnormal weightbearing. There was also 5/5 muscle strength and normal deep tendon reflexes. The examiner found there was no effect on the Veteran's usual daily activities. In September 2015, there was full strength and the examiner found there was no impact on the Veteran's ability to conduct tasks such as standing, walking, lifting, and sitting. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms such as pain, the evidence did not show additional limitation of motion or function upon repetitive use, and extension thus did not more nearly approximate limitation to 15 degrees. Accordingly, an increased evaluation is not warranted prior to June 27, 2017. Prior to June 27, 2017, the Board has also considered the other Diagnostic Codes pertaining to the knee and leg for higher or separate evaluations. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). For limitation of leg flexion 0, 10, 20, and 30 percent ratings are warranted where flexion is limited to 60, 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The 2010 and 2015 VA examinations, however, found flexion to 130 and 140 degrees. As noted above, there are no flare-ups reported during this time period and there was no significant additional limitations of function or range of motion upon repetitive use. Accordingly, the preponderance of the evidence does not indicate limitation of flexion limited to 60 degrees. A higher or separate evaluation is not warranted under this diagnostic code. On and after June 27, 2017, the Veteran's right knee disability is rated as 50 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As this is the maximum evaluation provided for limitation of extension of the leg, there is no basis to award a higher evaluation. On and after June 27, 2017, the Board has also considered the other Diagnostic Codes pertaining to the knee for higher or separate evaluations. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. For limitation of leg flexion 0, 10, 20, and 30 percent ratings are warranted where flexion is limited to 60, 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The 2017 VA examination, however, found flexion to 115 degrees. Considering the impact of additional functional loss, the 2017 examination was conducted during a flare-up, so reflects range of motion during such time. The Veteran reported pain with exercise and running and that he could not longer squat due to pain and crepitus. The Veteran reported functional loss or impairment in that he could not squat, he had leg weakness after standing, running, or with prolonged walking. There was difficulty and pain with flexion and extension and the Veteran walked without full extension. The examiner found no pain with weightbearing. There was mild pain on percussion of the patellofemoral ligament, objective evidence of crepitus. The Veteran was unable to perform repetitive use testing with at least three repetitions, but the examiner found the examination was medically consistent with the Veteran's statements describing functional loss with use over time. The examiner also found that pain, weakness, fatigue, and lack of endurance caused significant limited functional ability. There was 4/5 muscle strength. Although there was significant functional loss, these findings were made during a flare-up and so indicate that status. Even, then, flexion was only limited to 115, rather than the 60 degrees required for a separate evaluation. And although there was pain, weakness, and fatigue, they are reflected in that limitation. Additionally, the Veteran retained almost full muscle strength. Accordingly, the Board finds that the evidence of record does not more nearly approximately 60 degrees or less of flexion and a separate evaluation under this diagnostic code is not warranted. Throughout the entire appeal period, the Board has also considered the other Diagnostic Codes pertaining to the knee and leg for higher or separate evaluations. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The 2010, 2015, and 2017 VA examinations did not indicate degenerative joint disease demonstrated by X-ray evidence of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The VA examinations also each found there was no right knee instability or subluxations, or cartilage abnormalities. Additionally, the Veteran has not reported knee instability. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258, 5259. Each of the VA examinations found there was no right knee ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Furthermore, the lay and medical evidence do not reflect any notation of genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Code 5263. The lay and medical evidence does not indicate any impairment of the tibia or fibula. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Accordingly, no higher or separate evaluations are for assignment under these diagnostic codes. The Board acknowledges that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board considered the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. Under both the new and old criteria, a rating higher than 50 percent (60 percent) is warranted if there is ankylosis of the right knee and, as noted above, this has not been shown. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee disability prior to June 27, 2017, and in excess of 50 percent for right knee disability on and after June 27, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD and a right knee disability, is remanded. The Veteran contends that his sleep apnea is related to active duty as it began after his deployment to Iraq. See CAPRI (9/6/2018). Alternatively, the Veteran asserts his sleep apnea is secondary to his service-connected PTSD and/or right knee disability or his medications taken for those disabilities. See NOD (11/15/2018). The Board concludes that remand is required to provide the Veteran with an examination and to obtain relevant VA treatment records. First, remand is required to obtain VA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). Here, a May 2011 VA treatment record noted that the complete report of the Veteran's diagnostic sleep study was placed in Vista Imaging. See CAPRI (9/6/2018). Only an interpretation was placed in the VA treatment records. The Board does not have access to Vista Imaging. This report must be obtained and associated with the claims file. Second, remand is required to obtain a VA examination. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, sleep apnea was diagnosed in July 2018 private medical records. See Medical Treatment Record Non-Government Facility (8/2/2018). In 2010, the Veteran stated his girlfriend told him it sounds like he stops breathing at times while sleeping. See CAPRI (9/6/2018). In November 2010 VA medical records, the Veteran reported, in the context of possible psychiatric disability, that he had had sleep disturbances since he was deployed to Iraq. See CAPRI (9/6/2018). In his NOD, the Veteran's representative asserted that the Veteran's sleep apnea could be due to his service-connected PTSD and/or right knee disability, to include medications taken therefor. See NOD (11/15/2018). In a November 2010 VA examination for PTSD, the Veteran reported more trouble sleeping since he began taking antidepressant medication. See CAPRI (9/6/2018). Because there is evidence of a currently diagnosed disability, an assertion that sleep disturbances began during service, and an indication of possible symptoms as early as 2010 or a relationship to service-connected disabilities, remand for a VA examination is required. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2018 to the present. 2. Obtain the May 2011 complete report of the diagnostic sleep study located in Vista Imaging. 3. Schedule the Veteran for a VA examination for sleep apnea. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed sleep apnea. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's sleep apnea at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease. Consider whether in-service symptoms described by the Veteran at least as likely as not represent the onset of sleep apnea in service and indicate whether such symptoms are more likely than not due to other causesexplain. Whether the Veteran's sleep apnea is at least as likely as not (1) proximately due to service-connected PTSD, including any medications taken for PTSD, or (2) aggravated beyond its natural progression by service-connected PTSD, to include any medications taken for PTSD. Provide a rationale that deals with causation and aggravation as independent concepts. Whether the Veteran's sleep apnea is at least as likely as not (1) proximately due to service-connected right knee disability, to include medications taken for the right knee disability, or (2) aggravated beyond its natural progression by service-connected right knee disability, to include medications taken for the disability. Provide a rationale that deals with causation and aggravation as independent concepts. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. NOTE (3): If any medical history is rejected, a complete explanation is required. (Continued on the next page) 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.